Paula Fraser v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | Mr James Strachan |
| Judgment Date | 11 January 2021 |
| Neutral Citation | [2021] EWHC 31 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4766/2019 & CASE NO: CO/2426/2020 |
| Date | 11 January 2021 |
The Queen -on the application of-
and
[2021] EWHC 31 (Admin)
James Strachan QC (Sitting as a Deputy Judge of the High Court)
Case No: CO/4766/2019 & CASE NO: CO/2426/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ben Fullbrook (instructed by Richard Buxton Solicitors) for the Claimant
Mr Killian Garvey (instructed by Shropshire Council Legal Department) for the Defendant
Ms Thea Osmund-Smith (instructed by Wrekin Housing Trust for the Interested Party
Hearing dates: 14–15 October 2020
Approved Judgment
Mr James Strachan QC (Sitting as a Deputy Judge of the High Court):
Introduction
The Claimant challenges the lawfulness of two separate grants of planning permission by the Defendant to the Interested Party to provide extra care residential development on land known as Pauls Moss in Whitchurch, Shropshire (“the Site”).
“Extra care” is a term used by the Interested Party to describe specialist housing for persons over 55 years of age intended to enable them to live independently, but with access to a range of on-site care and support as they grow older, or develop greater care needs.
The Site is the location of Pauls Moss House a “non designated heritage asset”. It is not statutorily listed, but makes a positive contribution to a statutorily designated conservation area within which it sits. There are other buildings on the Site which have been used as “supported living” apartments. They are now considered not to be fit for purpose.
The Interested Party originally proposed redevelopment involving the demolition of Pauls Moss House. Its planning application for that scheme was refused by the Defendant. The two subsequent planning applications in identical form permitted by the Defendant are based on retention of Pauls Moss House. The description of the development permitted is:
“Re-development to include conversion of house to form cafe/community hub and flats; erection of 71 sheltered residential apartments; erection of health centre building; landscaping scheme including removal of trees; formation of car parking spaces and alterations to existing vehicular access”.
The first of the revised applications was granted by decision notice dated 18 October 2019. The Claimant was granted permission to bring her judicial review claim against that decision (“JR1”) by Neil Cameron QC (Sitting as a Deputy High Court Judge) on 10 February 2020 on two grounds: (1) a claim of unlawful direct discrimination on grounds of age in the approach to open space; (2) a claimed breach of the public sector equality duty (“PSED”) imposed under section 149 of the Equality Act 2010 (“the EA 2010”).
The second revised application for the same development was granted by decision notice dated 28 May 2020. The Interested Party submitted it in light of JR1, providing further information about the open space proposed. In determining it, the Defendant sought to address those two grounds of challenge raised in JR1. The second decision notice was issued shortly before the substantive hearing of JR1 was due to take place. The substantive hearing was adjourned by consent. The Claimant subsequently issued a further claim challenging that second decision notice (“JR2”).
The claim in JR2 has been dealt with on a “rolled up” basis alongside the relisted substantive hearing for JR1. The Claimant's proposed grounds of challenge for both JR1 and JR2 are essentially the same. They are set out in Re-Amended Statement of Facts and Grounds for JR1.
The Claimant's principal complaint is relatively simple. She is not opposed to the principle of redeveloping the Site to provide extra care residential accommodation. She believes the scheme the Defendant has permitted fails to provide adequate open space for its intended residents.
Despite the relative simplicity of this concern, there are than five grounds of challenge advanced against each decision which I summarise as follows:
i) Ground 1 – a misinterpretation of policy MD2 of the Defendant's adopted development plan as to the open space required.
ii) Ground 2 – a failure to act consistently with the approach to open space applied to the earlier refusal of the proposal involving demolition of Pauls Moss House.
iii) Ground 3 – a failure to have regard to material considerations, or the making of a material error of fact, or acting irrationally regarding open space.
iv) Ground 4 — direct or indirect discriminated on grounds of age or disability in respect of open space.
v) Ground 5 – a failure to have due regard to the PSED under the EA 2010.
All parties submitted that the principal focus should be on the Defendant's second grant of permission challenged in JR2. The logic is that if that decision was unlawful, the earlier decision challenged in JR1 would almost certainly be as well (given the same grounds articulated). By contrast, if that decision was lawful, the challenge under JR1 may well become academic to a significant degree, albeit questions as to relief and costs will remain at large. That said, all parties relied to differing degrees on the history of all three planning applications. This has necessitated consideration of the complex factual background which I seek to summarise in this judgment.
The parties also agreed it would be sensible to hear full argument on each of the five grounds before determining the formal question of permission that arises on the rolled-up hearing of JR2.
The hearing took place by video conferencing with the co-operation of the parties. The Claimant was represented by Mr Fullbrook. The Defendant was represented by Mr Garvey. The Interested Party was represented by Ms Osmund-Smith. I am very grateful to each of them for the clarity and helpfulness of their written and oral submissions, along with the way in which the submissions on both claims have been consolidated, so far as practicable.
Open Space
Before turning to the chronology of events, it is helpful to identify the main policy documents dealing with open space on which the parties focused.
Policy MD2 is a development plan planning policy contained in the Defendant's Site Allocations and Management of Development (“SAMDev”) Plan, adopted on 17 December 2015. It deals with a number of aspects of “Sustainable Design”. There are seven stated requirements for a development proposal to be considered acceptable. The fifth relates to landscaping and open space as follows:
“MD2: Sustainable Design
Further to Policy CS6, for a development proposal to be considered acceptable it is required to:
…
5. Consider design of landscaping and open space holistically as part of the whole development to provide safe, useable and well-connected outdoor spaces which respond to and reinforce the character and context within which it is set, in accordance with Policy CS17 and MD12 and MD13, including. [sic]
i. Natural and semi-natural features, such as, trees, hedges, woodlands, ponds, wetlands, and watercourses, as well as existing landscape character, geological and heritage assets and;
ii. providing adequate open space of at least 30sqm per person that meets local needs in terms of function and quality and contributes to wider policy objectives such as surface water drainage and the provision and enhancement of semi natural landscape features. For developments of 20 dwellings or more, this should comprise an area of functional recreational space for play, recreation, formal or informal uses including semi-natural open space;
iii where an adverse effect on the integrity of an internationally designated wildlife site due to recreational impacts has been identified, particular consideration will be given to the need for semi-natural open space, using 30sqm per person as a starting point.
iv. ensuring that ongoing needs for access to manage open space have been provided and arrangements are in in place for it to be adequately maintained in perpetuity.
…”
The explanatory text to Policy MD2 explains (amongst other things) that:
“3.6 … Policy MD2 builds on Policy CS6, providing additional detail on how sustainable design will be achieved. In applying these requirements, consideration should also be given to more detailed national guidance on design set out within good practice….
“3.13 Adequate open space is set at a minimum standard of 30sqm per person (equivalent to 3ha per 1,000 population). For residential developments, the number of future occupiers will be based on a standard of one person per bedroom. For non-residential development, open-space should be design-led, informed by the character and context of the development proposed, together with any requirement identified in the relevant Place Plan and the environmental networks approach set out in Policy CS17 and the Natural Environment SPD. For developments of 20 dwellings and more, the open space needs to comprise a functional area for play and recreation. This should be provided as a single recreational area, rather than a number of small pockets spread throughout the development site, in order to improve the overall quality and usability of the provision. On very large sites, it may be appropriate to divide the recreational open space into more than one area in order to provide accessible provision across the development. In such instances it is important that each recreational area is of a sufficient size to be functional. The types of open space provided need to be relevant to...
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